Gearing up to protect motorists' rights
Jonathan Black examines traffic legislation and asks whether the breathalyser law meets human rights criteria
It is now two years since the Human Rights Act 1998 was implemented, and the intervening period has seen numerous challenges to previously accepted procedures in the criminal courts, not least in the area of breathalyser law.
The law and procedures contained in the Road Traffic Acts of 1988 were always likely to raise issues for the courts in determining questions of proportionality.
These arise from the conflicting interests of the state in preventing crime and maintaining road safety, and those of the individual who is entitled to a degree of protection from illegal or irregular invasions of liberty or privacy.
Thus far the courts have been firm in backing the interests of the state argument, making it clear that European Convention on Human Rights arguments, if they are to be accepted, must be ones of substance rather than of form.
One area where it was originally thought that accepted procedures would need to change to become compliant with the convention involved the right to legal advice and representation at a police station before evidential specimens could be taken.
A long line of cases in the UK had established the principle that the importance of securing evidence, showing a driver to be above the prescribed limit, outweighed any right to legal advice and assistance up to that stage.
However, the New Zealand Court of Appeal in Minister of Transport v Noort [1992] 3 NZLR 260 had held that a limited opportunity to consult a lawyer by telephone should be read in to the relevant legislation, despite the absence of words to that effect.
As a motorist is arrested after provision of a positive screening sample of breath at the roadside, he is detained from arrival at the police station and thus, it was argued, entitled to legal advice before being required to provide bodily samples, which might subsequently be used to found a prosecution against him.
The Administrative Court was not swayed by the argument.
In Campbell v DPP noted at (2002) JPN 538, it held that incorporation of the convention had not changed the law, and that a refusal to provide a specimen before receiving legal advice could not amount to a reasonable excuse and thus afford a defence to the charge of failing to provide an evidential specimen.
Other main convention-based challenges in recent months have centred around the provision in section 15(2) of the Road Traffic Offenders Act 1978 that evidence of the proportion of alcohol in any specimen provided by the accused shall be assumed to be the same as it was at the time of the alleged offence.
In Beauchamp-Thompson v DPP [1989] RTR 54, it had been held that section 15(2) created an irrebuttable presumption as to the amount of alcohol in breath (blood or urine) at the time of driving.
Was such an irrebuttable presumption compatible with article 6.2 of the convention, which provides that everyone charged with a criminal offence is innocent until proven guilty according to law?
In Parker v DPP [2001] RTR 240, the Divisional Court held that such an assumption is lawful.
Although the presumption of innocence in article 6(2) was a fundamental principle of the rule of law, presumptions of fact or of law, did not, in principle, infringe that principle provided that they were maintained within reasonable limits, depending on the importance of what was at stake - Salabiaku v France [1998] 13 EHRR 379.
Alternatively, the court said that having regard to the way in which the interests of a democratic society evolves in maintaining road safety, the assumption in section 15 was a reasonable one, well within normal limits and compatible with the rights deemed to be protected by article 6.
A further convention challenge to section 15 was mounted in R v Drummond [2002] Crim.
L.R.
666.
The case, involving a 'hip-flask' defence - where alcohol is drunk after an accident - was argued on the basis that section 15 should impose an evidential, rather than a legal burden on the defendant.
As such, the legal burden would remain with the Crown throughout to prove that the defendant had excess alcohol in his breath at the time of driving.
At trial, the trial judge ruled that section 15 imposed a reverse burden of proof, which was justifiable in the context of the offence and not contrary to the presumption of innocence in article 6(2).
The Court of Appeal upheld the judge's ruling.
Convention law did not require that all apparently legal burdens of proof on a defendant had to be read down to be merely evidential burdens.
If an appellant consumed alcohol after the commission of an alleged offence, it was he who undermined the legitimate aim of the legislature by making the simple scientific test potentially unreliable.
Legislative interference with the presumption of innocence as set out in section 15 was justified and was no greater than was necessary.
A similar argument was put forward in Griffiths v DPP (2002) 166 JP 629, where a driver called expert evidence to the effect that between being stopped by the police and providing a sample, his body had continued to absorb alcohol, so that the analysis of his sample showed a proportion of alcohol far in excess of what it had been at the time of driving.
The Administrative Court held that a court was not competent to receive expert evidence which would have the effect of undermining section 15(2).
The statutory assumption was wholly proportionate and not a contravention of article 6.
Undoubtedly, there will be additional ECHR challenges to breathalyser procedures.
However, for the moment the courts of England and Wales have expressed themselves to be content that the procedures developed over the years in relation to breathalyser law are compatible with the provisions of the convention.
Jonathan Black is a solicitor and clerk to the justices for Hampshire and the Isle of Wight.
His new book Drinking and Driving Offences: Practice and Procedure is published by Law Society Publishing and can be ordered direct from Marston Book Services, tel: 01235 465 656
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